DoJ to pull back on low-level drug indictments

posted at 10:41 am on August 12, 2013 by Ed Morrissey

Given the trend of overprosecution these days, which Glenn Reynolds has thoroughly documented, this decision from the Department of Justice comes as at least a potentially pleasant surprise. Attorney General Eric Holder will instruct federal prosecutors to tread lightly with non-violent drug offenders with no organized-crime ties in order to avoid the lengthy mandatory sentences that follow from more zealous prosecution. It’s a first step for the Obama administration’s long-promised reform of the War on Drugs:

Attorney General Eric H. Holder Jr. is set to announce Monday that low-level, nonviolent drug offenders with no ties to gangs or large-scale drug organizations will no longer be charged with offenses that impose severe mandatory sentences.

The new Justice Department policy is part of a comprehensive prison reform package that Holder will reveal in a speech to the American Bar Association in San Francisco, according to senior department officials. He is also expected to introduce a policy to reduce sentences for elderly, nonviolent inmates and find alternatives to prison for nonviolent criminals. …

Holder is calling for a change in Justice Department policies to reserve the most severe penalties for drug offenses for serious, high-level or violent drug traffickers. He has directed his 94 U.S. attorneys across the country to develop specific, locally tailored guidelines for determining when federal charges should be filed and when they should not.

“Too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Holder plans to say. “We cannot simply prosecute or incarcerate our way to becoming a safer nation.”

The mandatory-sentencing laws came as a result of rising anger over lenient judges and soft sentencing in the 1970s that turned prisons into turnstiles. Repeat offenders would commit more violent crimes, get released, and then commit even more. The laws were intended to force judges to lock violent criminals away for significant periods of time, not so much in the cause of rehabilitation of then-current felons but as a deterrent to others who might follow in their footsteps. However, the use of mandatory minimums spread to the war on drugs and widened to non-violent crimes as well, resulting in unjust sentencing for relatively minor crimes.

Honestly, this sounds like a good idea outside of the drug war, too. It would have been a good idea in Florida, for instance, had prosecutors rejected a second-degree murder charge for George Zimmerman and had charged him with manslaughter or negligent homicide instead, which would not have required the state to play the race card in order to prove a “depraved” state of mind. On the federal level, such restraint might have been a good idea in the Bradley Manning court-martial, too; instead of pushing a charge of “aiding and abetting the enemy,” which was overkill, they could have concentrated on the actual crimes of leaking nearly three-quarters of a million classified documents. In both cases, a little prosecutorial discretion would have done wonders for their credibility.

Will the Obama administration address prosecutorial zealotry in other contexts than the war on drugs? How about addressing the rapid expansion of criminalization that threatens liberty on a wider scale, too? This is a good first step, perhaps, but it’s only a very small one.

Meanwhile, did you know that the country’s Drug Czar is leaving his post? Did you know his name? If not, perhaps we don’t need a drug czar at all, McClatchy’s Rob Hotakainen postulates:

U.S. drug czar Gil Kerlikowske is leaving office unceremoniously, forgotten long before he was ever known to most Americans.

But for those leading the push to legalize marijuana, he’ll be remembered as the tough-talking former police chief from Seattle who never yielded on the question of legalization, always warning of the health dangers linked to smoking pot. That stance put him at odds with the growing majority of Americans who now back legalization.

As Kerlikowske, 63, heads for a possible job as the U.S. Customs and Border Protection commissioner, his exit prompts suggestions that America’s drug czar has become irrelevant and whether President Barack Obama should bother with a replacement.

“One of the most helpful things the president can do right now is to not spend money on filling that position,” said Seattle City Attorney Pete Holmes, whose office stopped prosecuting misdemeanor marijuana cases in 2010.

But legalization opponents say it would be a mistake to eliminate the office. They see it as a crucial vehicle for making clear to Americans the dangers and damages of a wide range of other drugs – from methamphetamine to cocaine to heroin – that the U.S. public wants kept illegal. Kevin Sabet, who served as an adviser on drug issues to Obama and former Presidents George W. Bush and Bill Clinton, said the drug czar could serve as “a powerful conduit for the direction of drug policy.”

Or the administration could nominate another non-entity like Kerlikowske, which might be the same thing as eliminating the post, only with a salary still attached. Frankly, I don’t think we need any kind of czars at all, especially not this position. When it first came into being, the drug czar was the President’s close aide that coordinated anti-drug efforts across several different Cabinet departments. Now most of those efforts are concentrated in either the DoJ and DHS, and those efforts can be handled by sub-secretary liaisons rather than a “czar.”

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I’m not used to all this good news so close together. Coming out against mandatory minimums, new sentencing guidelines? Pushiing away from the logical imperatives of the War on Drugs? Who are you Eric Holder?

And by the way, this seems like a brilliant move to cut Ted Cruz and Rand Paul off at the pass before 2016. Working against the War on Drugs were those guys strongest argument to young voters. If Obama moves towards a libertarian approach on the War on Drugs before the GOP, the Republicans will have missed a huge opportunity to capture disaffected young whites. GOP fail.

Unfortunately, the motivation for Holder to do this most likely wasn’t that is was the right thing to do, but that it was based on race – and the higher level of blacks being affected by the mandatory minimums. That’s my opinion, but everything else he’s done is colored by race.

It’s funny because when crack and other drugs appeared on the streets and started decimating lives people screamed for the government to do something … they did.

Now they’re screaming because they did something and now it’s racist and it’s all the Republicans fault.

You can never win. The best solution is to massively shrink the government and get it the hell out of our lives.

Of course this is all politically motivated. Designed to curry favor and get votes. Democrats couldn’t give a rat’s ass about anyone. The corrupt racist Holder will now get credit for “saving people” and of course the white black Obama will give some speech invoking racism and Republicans and how he’s helping the black community.

The country’s first drug ban explicitly targeted the opium of “the heathen Chinee.” Cocaine was first banned in the south to prevent an uprising of hopped-up “cocainized Negroes.”

Prohibition is an awful flop. We like it. It can’t stop what it’s meant to stop. We like it. It’s left a trail of graft and slime, It don’t prohibit worth a dime, It’s filled our land with vice and crime. Nevertheless, we’re for it.

Gotta make sure the punks doing Purple Drank (and then bringing Skittles to a gun fight) don’t end up in jail. That would make it harder to present them as cherubic paragons of virtue to a slavish media.

Why is the Federal govt. investigating and prosecuting “low level” non gang affiliated drug activity in this first place? This is exclusively a State and local concern.

tommyboy on August 12, 2013 at 10:58 AM

Which is why this reform will matter very little to most people. Still it is a strong discursive blow against mandatory minimums. Hopefully it will encourage similar reforms at the state level. Mandatory minimum laws are among the greatest crimes of the Rockefeller admnistration in New York and were, sadly, exported around the country.

And don’t forget that the prohibition against marijuana emerged out of anxiety about black-white interracial sex. Prohibition of drugs is primarily about regulating minority communities, as the uneven prosecution of drug prosecutions continually shows.

Democrats Continue to Prove that It’s All about Vote-Buying
By W.A. Beatty (Amer Thinker)

Here’s something I’ll wager that we don’t hear about from Al Sharpton, or Jesse Jackson, or Sheila Jackson Lee, or Jeremiah Wright, or Barack Hussein Obama, or the NAACP, or any Democrat for that matter. Lyndon Baines Johnson (LBJ), a Democrat and civil rights icon, speaking while aboard Air Force One about his “Great Society” to two sympathetic governors, said, “I’ll have them (uses N word here) voting Democratic for the next two hundred years.”

LBJ also said (emphasis mine):

These (N word), they’re getting pretty uppity these days and that’s a problem for us since they’ve got something now they never had before, the political pull to back up their uppity-ness. Now we’ve got to do something about this, we’ve got to give them a little something, just enough to quiet them down, not enough to make a difference.

Mandatory minimum laws are among the greatest crimes of the Rockefeller admnistration in New York and were, sadly, exported around the country.
libfreeordie on August 12, 2013 at 11:03 AM

Mandatory minimums premised on prior criminal convictions have been an element of most States’ criminal statutes for decades and and can be an effective crime fighting tool. As long as they are not too draconian I have no problem with them, especially if, as in Indiana, the executed time can be served on home detention or work release in appropriate circumstances.

And don’t forget that the prohibition against marijuana emerged out of anxiety about black-white interracial sex. Prohibition of drugs is primarily about regulating minority communities, as the uneven prosecution of drug prosecutions continually shows.

libfreeordie on August 12, 2013 at 11:06 AM

You really are one ignorant racist, aren’t you? Where the hell do you get this stuff? I weep for your children to be poisoned with stupidity, lies, and outright hate of other races. They don’t have a shot of becoming decent human beings, functional adults, or contributors to society.

Good idea since the DOJ has so much of its resources directed towards targeting Tea Party groups or anyone who raises a voice in defiance against the Dog Eater.

Bishop on August 12, 2013 at 10:49 AM

I can’t tell if you’re being sarcastic…

What happens when DOJ employees get pulled off of drug crimes, you think they get their budget cut and laid off? Or you think maybe those resources get redirected towards whatever the Dog Eater tells him to direct them towards?

Prohibition of drugs is primarily about regulating minority communities,
libfreeordie on August 12, 2013 at 11:06 AM

Nonsense. While marijuana was associated with african americans at the time of of the Harrison act, cocaine and opiates (laudanum primarily) were primarily associated with middle age white females who could by both at the drug store. All of these drugs were outlawed – which is why Coca Cola had to change its “secret” ingredient.

A bit of pandering, but useful all the same. Prison populations have skyrocketed over the years, and not because there was an explosion of criminality, but an explosion of legal corruption that valued numbers over justice.

Next up: lessening prosecutions on rape charges (as long as it is not rape rape), forgiveness of non-violent murders.

Awesome.

Darksean on August 12, 2013 at 11:19 AM

Oh! I think next up is putting jails and prison on notice that they have to be more racially mixed in their inmates. Telling prosectutors that they have to go out after more whites. And paying less attention to white victims than they do to black victims of violent crime.

In short, the idea is not make the judicial system look more like the nation even though statistically blacks and Hispanics in gangs are more likely to commit certain crimes than whites. But none of that matters the myth of disproportionate justice is alive and well.

Nonsense the myth of disproportionate justice dictates that the only reason why blacks and Hispanics are in jail in higher numbers is because they are targeted by law enforcement. That they are statistically more likely to be involved with gangs, more likely to be from single-parent homes with no strong male role model, more likely to be unemployed, more likely to be a high school drop out…..

None of that is a factor. Just Whitey going out after minorities for no good reason other than race.

I am sorry, I am reading this differently, the “mandatory” in the sentencing was that the length of the sentence was mandatory at a minimum level. This does not waive charges or sentencing. What does “not pursue,” mean and not charge?

Mandatory minimums were supposed to be deterrents to crime and they seem not to work for what they are calling low level drug charges, since the perps don’t know about them until they get caught. There also must be certain amount of drugs that a person carries to make money that makes it worth it…how much ill gotten gain would that be, to risk prison. If you make $1000? $10,000?

I am for Charges. I am for a record if someone is involved, so the next time they are caught the police know they have not changed their ways. I am in favor of testing for impaired driving equal to alcohol. I would be for mandatory rehab, not somewhere posh, in a prison setting, but rehab without being with violent criminals. For political reasons liberals want all the criminals together, but when Holder says the sentence exposes these people to elements that encourage more crime…that is HIS fault not the fault of sentencing.

Any of these low level drug offenses when combined with an illegal gun possession need mandatory sentences. He didn’t mention gun possession at all.

As much as I hate to agree with this administration, they are right on this one. We waste so much law enforcement, court and prison resources on these idiotic mandatory sentences for low level drug crimes that we have real crimes not being attended to.

There is a reason that in our constitution jury trials are prescribed…legislators are not jurors or judges.

Mandatory minimums were supposed to be deterrents to crime and they seem not to work for what they are calling low level drug charges, since the perps don’t know about them until they get caught.
Fleuries on August 12, 2013 at 11:48 AM

Most mandatory minimus don’t apply to “low level” drug charges. They generally apply to felony charges where the defendant has prior felony convictions. Trust me, the perps know about them.

Unfortunately, the motivation for Holder to do this most likely wasn’t that is was the right thing to do, but that it was based on race – and the higher level of blacks being affected by the mandatory minimums. That’s my opinion, but everything else he’s done is colored by race.

Unfortunately, the motivation for Holder to do this most likely wasn’t that is was the right thing to do, but that it was based on race – and the higher level of blacks being affected by the mandatory minimums. That’s my opinion, but everything else he’s done is colored by race.

And by the way, this seems like a brilliant move to cut Ted Cruz and Rand Paul off at the pass before 2016. Working against the War on Drugs were those guys strongest argument to young voters. If Obama moves towards a libertarian approach on the War on Drugs before the GOP, the Republicans will have missed a huge opportunity to capture disaffected young whites. GOP fail.

libfreeordie on August 12, 2013 at 10:53 AM

Ha ha ha. Yeah – all those young kids will be duly impressed with Obama’s libertarian bona fides as they ask themselves why they can’t find a job with a college degree and why the libertarian champion Obma is making them buy expensive healthcare insurance.

And by the way, this seems like a brilliant move to cut Ted Cruz and Rand Paul off at the pass before 2016. Working against the War on Drugs were those guys strongest argument to young voters. If Obama moves towards a libertarian approach on the War on Drugs before the GOP, the Republicans will have missed a huge opportunity to capture disaffected young whites. GOP fail.

libfreeordie on August 12, 2013 at 10:53 AM

Which is why this reform will matter very little to most people. Still it is a strong discursive blow against mandatory minimums. Hopefully it will encourage similar reforms at the state level. Mandatory minimum laws are among the greatest crimes of the Rockefeller admnistration in New York and were, sadly, exported around the country.

libfreeordie on August 12, 2013 at 11:03 AM

At least libfreeordie is admitting that Democrats aren’t actually judged on their records but rather political spin and their “intent”.

I can see the near future in which drug cartel mules with a few tons of stuff get a pass… but any Libertarian having enough to roll your own gets the book thrown at him/her to show just how non-law abiding they are.

Yessirreebob this selective enforcement of the law with a political bias sure does help the party in power!

Plus the DoJ will get to investigate itself to see if it is implementing the policy in a non-biased way. Isn’t that special?

It’s puzzling that the O (until now?) has pursued the drug war with even more zeal than GWB. Puzzling because other than the pandering Obama, most black leaders consider that drug war an outright assault on the black community. That’s true, but whites are not immune to falling victim as well to the brutal war.

In the minority neighborhoods…
Residents are subject to constant surveillance and harassment and arrest as the police invades. We go in to clean out the “rats nest” of crack houses and to wage war with the gangs. But, if drugs were legal, these crack houses wouldn’t exist, as purchase could be made through legal channels and consumption done at home. The criminal gangs and associated rampant violence wouldn’t exist, and scores of millions of blacks wouldn’t be locked up in prison and saddled with criminal records.

I’m not a bleeding heart, so why should I care?

But how does that benefit Republicans? I don’t see any benefit, and as far as helping blacks by cutting down their drug use, the evidence is that the drug war doesn’t do that. In fact the drug war increases drug use! Why? Well, check out youtube videos on Portugal where a decriminalization of ALL drugs has led to a reduction in drug use: https://www.youtube.com/results?search_query=portugal+drug+decriminalization

How does the costly brutal drug war make any sense at all, for minorities and whites, when it increases drug use? It’s irrational.

If they don’t like the law, then gather the data, go to Congress and change the law. Prosecutors who pick and choose which laws they want to prosecute also pick and choose their defendants…. which is a more accurate description of Reynold’s articles regarding over charging in order to increase plea bargains by prosecutors.

If they don’t like the law, then gather the data, go to Congress and change the law. Prosecutors who pick and choose which laws they want to prosecute also pick and choose their defendants…. which is a more accurate description of Reynold’s articles regarding over charging in order to increase plea bargains by prosecutors.

2nd Ammendment Mother on August 12, 2013 at 3:58 PM

So IF I am on a jury, HOW do I vote to convict ANYONE of a crime when the prosecution is picking and choosing which laws to enforce?

1. The US incarcerates more people per capita than any other nation in the world. The natural rate of incarceration for most countries tends to stay around 100 prisoners per 100,000 residents.

The U.S. rate is 748 prisoners per 100,000 residents.

China is 120 per 100,000 residents
Saudi Arabia is 178 per 100,000 residents
Iran is 223 per 100,000 residents
Cuba is 331 per 100,000 residents
Russia 398 per 100,000 residents

2. Mass incarceration is not a result of higher crime rates but because of the imprisonment of non-violent offenders of victimless crimes (mostly possession of marijuana).

3. Mass incarceration is expensive: Imprisoning people is not cheap. The average cost of housing an inmate is approximately $30,000 to $50,000 per year.

The above data exposes a serious problem with the US war on drugs.

Because of the “War on Drugs” the US has very strict laws compared to other nations and very high mandatory minimum prison sentences. Instead of community service, fines, or drug treatment – their sentenced to a mandatory prison term, by far the most expensive form of punishment.

Since 1980 the prison expansion has been primarily a result of “get tough” policies for the “war on Drugs”. A study from the Federal Bureau of Prisons concludes : ” the majority of those being held in federal prisons are convicted of drug offenses—namely, marijuana.” (nonviolent, victimless drug offenses)

Policies under the rubric of the “war on drugs,” like the expansion of mandatory sentencing and “three strikes” policies and cutbacks on parole release in many states are the cause of the US having the highest prison stipulation in the world.

All the standard claims about how the US is made up of more evil, low life, criminals than all the other country in the world are merely false propaganda used to so as to justify the world’s largest prison population.

Americans have no more criminals per capita than any other nation it only has far stricter laws requiring much longer prison sentences with its mandatory minimum sentences for nonviolent, victimless drug offenses (mostly possession of marijuana).

“This has the makings of a key moment in beginning to undo the disastrous war on drugs.” -Matt Welch, Reason
“Conservative reaction to Holder’s speech will be extraordinarily interesting. Long before Rep. Rand Paul drew national attention .. there was a quiet movement on the right in favor of calling off the madness of mandatory minimums. Just as important, this trend was being fed by various tributaries of the conservative stream, not just libertarians but conservative evangelicals and budget-conscious fiscal hawks.” -Ed Kilgore, Washington Monthly
“Then, out of the blue, with a confused expression, the [elderly black] man asked me: ‘What is three ounces?’ His only son had been imprisoned for 13 years for possession of cocaine, a sentence that ‘robbed my son of his life,’ he said. But he struggled to square that conception with such a small amount of weight.” -Jim Neal, The Daily Beast
In 1991, Robert Moss and his wife had a one-year old and a baby on the way when Moss was convicted of conspiracy to violate marijuana laws. Because of federal sentencing guidelines passed in the mid-80s, Moss was sentenced to more than 20 years in federal prison. Moss returned to his family in Seattle in the Fall of 2011.
“Legalization will kill the drug smuggling business, the innumerable arrests and filling of jails. The savings will be significant. And, the people who insist on using drugs will use them, war or no war on drugs. It is impossible to stop humans from the desire to alter their state of conscienceness. Call it escape, enlightenment, abuse, whatever you choose, it will never end…Drug abuse will never be stopped. Money would be far better spent on treatment, education and to those who would abuse to the end, they will die.” -NYT Comment

As much as I think the “War on Drugs” is a colossal abuse of federal power, selectively enforcing the laws that make that abuse possible is much, much worse.

Obama wasn’t a big drug warrior because he thought drugs were evil (ROFLMAO), it was the it gave him an ongoing reason to fund the private armies and exercise the confiscatory powers that were authorized by them.

It’s all about power. If they really cared, they would work to repeal the minimum sentence laws. But it’s far more useful to them to leave these laws on the books, and enforce them selectively against whoever they want.

Ed, two comments. One, this is the Attorney General making laws contravening the (misguided) intent of Congress. This is bad.

Two, Holder should make a formal recommendation, through the office of the POTUS, that Congress should reconsider the “war on some drugs
and mostly the American people.” It has proven to be a losing fight. The losing fight is costing innocent people caught in the cross-fire their lives and safety. Regulate the silly substances for quality and potency, tax sales, and make damaging acts taken under the influence of drugs more serious offenses than the same acts taken when “clean.” Make clandestine drugging of another individual an offense on the level with first degree murder. Get on with life.